Why 'President Trump' wouldn't be bad news for India

FiveThirtyEight, America’s best-known poll forecaster, has predicted that Donald Trump has a 50.1 per cent chance of winning the US presidency. It is time to suspend disbelief and assess just what a Trump presidency could mean for the world and India.

Trump has divided the US electorate down the middle. He has been attacked for his erratic ways, racism, and questionable business practices. 

Yet, he bested the powerful Republican establishment to become the party nominee for the presidential elections.

Polls now indicate that Donald Trump is the 50.1 per cent favorite to become the new US President

 

Inequality

What forces have carried Donald Trump to this stage? Win or lose, they will be around in the US over the coming decade.

Most noticeable is the feeling among large sections of the people that the American establishment has colluded with the rich in other countries to impoverish the average American.

This has led to a chronic, growing inequality in the US and an exacerbation of the race issue. 

Globally, instead of benefiting from the rise of East Asia, the US has spent a fortune in wars in the Middle East, and is now witnessing the destabilisation of its key ally, Europe, by Islamist terrorism and unchecked migration.

Meanwhile China expands its military and economic capacity and could challenge the US, first in East Asia, and then possibly the world.

Assuming Trump does not quite live out his persona as POTUS, and that he is a person of reasonable intelligence, it is possible to get a reasonable idea of how he will be different.

A lot will depend on the outcome of the Congressional elections, because while the Congress cannot make policy, it has the capacity to obstruct a President’s agenda just as has happened in the case of Barack Obama.

Perhaps the most significant shift will be in the way the US engages the world.

The US played a crucial role in setting up the UN, the international monetary and trading system, non-proliferation, arms control, and a host of international agreements that bind the world.

It shaped a global environment in which most states believed that following the rules was in their self-interest, and in turn the US paid the primary cost of policing that system.

Now, Trump wants out. Many Americans have spoken of free-loading allies, but for Trump it has been an obsession.

His world will be much more transactional, where say in the area of security, Europe, Japan and the Middle Eastern allies of the US will be asked to cough up their contributions.

Momentum

His words and deeds suggest that he will seek to restore the geo-political balance which has been skewed by the Western policy on Ukraine, which has sent Russia into the arms of China.

He will take a tough stand on Islamism, with implications for the Gulf monarchies.

On the matter of trade, the horse has already bolted. Trump has attacked Mexico and NAFTA, but in recent year many US analysts have averred that the US gave China a free ride in the trading system and by cleverly under-valuing its currency, Beijing sucked away US industries and jobs. 

There is little they can do to reverse this; China has unstoppable momentum.

Trump is committed to opposing the brahmastra of the Trans Pacific Partnership (TPP) but he is bound to a tough-line on China on trade and currency issues.

Worldview

India does not figure in Trump’s Manichean worldview - which is for the good. India simply does not impact on the US to the extent that Russia, Europe or China do.

IPR and job outsourcing issues are there. But they are minor in the larger scale of problems that the US must tackle to reduce its debt, reform its tax laws, rewrite trading agreements and get on to the path of growth which also benefits the average person.

Trump promises to take a tough stand on Islamism, with implications for the Gulf monarchies

Whether it is in tackling China, Islamism, or the Russian rift, Trump’s policies will benefit India.However, New Delhi will also be on that transactional framework where it will be asked what it has on offer to merit the US’s friendship - and we cannot rule out an American decision to knock heads on issues like Kashmir.

Every US President since the Cold War have been committed to maintaining the American global hegemony.

Trump and his supporters believe that their harsh agenda is the necessary medicine for the US and the world, to save them - and in the process retain America’s number one status.

Mail Today July 31, 2016

Lesson From Kashmir: The Art of Policing Lies in Tiring Out a Mob and Not Firing Upon It

The way sensible riot control is done is to deploy sizeable numbers before rioters every day and to use attrition as their principal weapon.

Youths throwing stones at security forces during a clash in Srinagar on Thursday. Credit: PTI/S. Irfan

Within five days of the shooting of Hizbul Mujahideen militant Burhan Wani, 36 young Kashmiris had died and 1500 or so injured in the ensuing protests.  Earlier uprisings in 2008 and 2010 had also seen more than 200 people killed in protests. Today, the death toll stands at 45.
Even though many more civilians were killed in the state every year in the past – in 2001, for example, SATP figures show, civilian casualties were as high 1067 – what makes the present figure so unacceptable is that the most violent phase of the Kashmir insurgency is long behind us. Clearly, the security forces are ill-equipped to deal with the rise of protest movements involving civilians. The first wave of mass protests was against the lease of land to the Amarnath Yatra board in 2008. In 2010, it was the shocking Machhil fake encounter that brought young men and boys onto the streets.  This time around, it is the death of Wani.
A common thread in all these protests is that they brought ordinary folk, mostly the young, out onto the streets. While many of them may have sympathised with the demand for independence, they were themselves neither militants nor active political workers. In other words, they were civil protestors who often expressed their anger in the somewhat uncivil way of throwing stones at the security personnel – something protestors in Haryana, Rajasthan and Andhra Pradesh have done in the recent past, to mention just a few regions of India.
Given the overwhelming dominance of the army and paramilitaries for over a decade, militants today can only operate in the Valley in very small groups of three or four and it is not easy for them to move around with their weapons. There are some forest and mountainous areas where they can gather in larger numbers, but in populated areas, they are very cautious because the police and IB’s information network is dense and often the militants get cornered in their hideouts. The rules of engagement say that the security forces should try and arrest them, failing which shooting is the only other option.
The problem arises with civil protestors who gather in crowds that can vary from 30 to 100, often emerging from narrow alleyways in urban areas.
There has often been talk of militants operating with the crowds and using weapons. Though there have been reports of shrapnel injuries caused by the odd grenade, till now there is no record of any police officer being shot while confronting a crowd. The problem really is in the inability of the police to manage the crowds – which often assume the form of a riot, with protestors throwing stones at the police personnel.
In a riot-like situation where the police and security forces find themselves at the receiving end, standard operating protocols demand that they be prepared to open fire – especially when there is danger of the force being overwhelmed and losing its weapons. However, the large number of non-combatants who have been killed in recent days indicates the police has also been trigger-happy – or is simply not trained to deal with civil protest and riot-like situations.

Poor training, high stress
Since 1990, the security forces have operated in the Valley in response to an insurgency-like situation to combat armed militants. But, those days are over and have been over for the better part of a decade.
However, the police force which was trained to deal with militant with guns, remains untrained in handling riots where the main weapons are stones. There was talk of retraining forces and some were, indeed, trained to deal with crowds. That is the point in time when the police acquired rubber pellet guns. Now the term ‘rubber pellet’ is a misnomer. These are actually shots of steel covered with rubber and therefore can be pretty dangerous, especially when the police are too close to the crowd. Actually, researchers have questioned their use either way.
Well before India turned to ‘rubber pellets’, a study in 2001 conducted in a Jerusalem hospital after the Palestinian uprising and published in Eye, the journal of the Royal College of Opthalmologists, found a high instance of eye injuries among those hit. It concluded that “the term ‘rubber bullet’ is misleading. ‘Rubber bullets’ cause a wide variety of ocular and periocular injuries. Orbital fractures are common. The tissues of the orbit are easily penetrated. If the globe is hit, it is rarely salvageable.”
Its not clear whether the police is using Israeli ammunition, or that made by the Ordnance Factory Board. Pictures and x-rays of those shot indicate that these are metallic balls. Either way, these have to be used under strict rules of engagement, which means shooting low and at distances beyond 50 metres,. But in riot-like situations, it is difficult to meet the SOPs, a problem made more difficult  by ricochets in urban locations in Kashmir.
The ironic difference is that the Israelis are using these bullets against people they do not consider a part of their country. This is something that Modi-bhakt hawks do not understand when they hold up Israel as a paragon of counter terrorism. India’s goal is to try and ensure that Jammu and Kashmir remains part of this country. Surely, it calls for tactics and procedures which are designed to achieve that end.
The police and security forces cannot be blamed for this development. The blame rests squarely with the politicians and their mandarins, whether they sit in the secretariat in Srinagar or North Block in New Delhi. Time and again they have messed up the politics of running the country and then ruthlessly used the police to fight the fires that they have been responsible for lighting. Their assumption is that just because they pay the salaries of the police force, they can do what they like with them.

Repeating old mistakes
In 1990, the Border Security Force, which had never been involved in internal policing for more than a couple of days, was press-ganged into the Valley and ordered to re-establish the state’s control in the urban areas of the Valley. To do this, they set up pickets in militant dominated areas where night after night their bunkers came under fire. The stress of living there and for others, running the gauntlet to supply them, inevitably created a kind of mentality which was responsible for great excesses by the force.
The story of the CRPF is no different. In the 2002 elections, and here I am writing from memory, I reported about a CRPF unit deployed in Kashmir. It had, in the previous six months, never spent more than 10 days in one location because they were asked to douse fires all over. Fourteen years later, nothing has changed. So yesterday you could have been in Chattisgarh fighting Maoists, today, there is a riot in Gujarat demanding reservations for Patels, tomorrow the Jats revolt in Haryana, and now you are fighting separatists in Kashmir. There is black humour in the joke that CRPF stands for Chalte Raho Pyare Force (Keep on moving force.) Stressed out constables, usually deployed in penny-packets and commanded by non-commissioned officers, they are liable to excesses in the cauldron into which they are thrown. It is not as though there are no drills and courses for the jawans. The problem is that too much is expected from them – from counter-insurgency to riot control and guarding VIPs.
The experience in anti-Maoist operations has revealed in stark detail the disaster that happens when a force which is trained for static policing is ordered to counter well-prepared guerrillas after some rudimentary jungle warfare training. And that disaster is compounded when this same force is asked to counter civil protest and riots, with little or no retraining. Is it any wonder that when dealing with a riot, they confuse the adversary for the “enemy” to be overwhelmed, failing which their own lives are at stake.
The training of police to deal with civil protests which degenerate into riots is a highly specialised job and requires substantial investment in personnel, equipment and training. It is not that the government does not understand this. We have the experience before us of how – after repeated riots often made worse by police excesses in the 1980s – the Rapid Action Force was created asa unit within the CRPF. Currently it has 10 battalions – that’s roughly 10,000 men and women – spread across the country. Which means they can at best deal with one-and-a-half major riots.
But given the situation in J&K, you would need a force of that size to be stationed permanently in the Valley itself.
 The way sensible riot control is done is to deploy sizeable numbers before rioters every day and to use attrition as their principal weapon. They need to be specially equipped and provided with protection against stones and they need to be specially trained for  crowd control.  Being policemen, they need to be told that time is not the issue, but the need to wear down the rioters is. So they should be prepared to go on – day-in, day out – confronting the rioters in the largely passive mode of blocking their movement, even while using tear gas and an occasional lathi charge when things threaten to get out of hand.
Other countries have done this and succeeded. The best example is that of South Korea which had a major problem with its police forces prior to the 1988 Olympics. Clashes between the police and students had led to scores of deaths. However, in the run up to the Olympics, South Korea decided to retrain its force on methods of crowd and riot control.
Since then, these have been held up as models around the world. South Korean rioters can be more than a handful. On one occasion, they even came equipped with flame-throwers and other incendiaries to attack the police, but to little avail.
The troubles in Kashmir are not about to get over soon. In any case, in a large and chaotic country like India, there is always going to be need for trained riot police. The time has come to give up ad hoc solutions and think about the police and policing in a much more systematic and rational manner.

The Wire July 22, 2016

Not just China, the world's in deep water

The biggest issue arising from last week’s verdict by the arbitral tribunal on the South China Sea is the question of the rule-based international system. Since 1971, the world community has made an effort to bring the People’s Republic of China into this system by helping it become a member of the UN Security Council, the UN Convention on the Law of the Seas (UNCLOS), the Nuclear Non-Proliferation Treaty, the World Trade Organisation and other global regimes.

By rejecting, as it has done, the procedure of the compulsory dispute-settlement mechanism of UNCLOS, China could well undermine a raft of international agreements that incorporate arbitration to resolve a dispute which cannot be settled through bilateral negotiation. This has wider implications, since compulsory arbitration often feature in business agreements.
In ratifying the UNCLOS, the Chinese voluntarily accepted its compulsory dispute resolution mechanism. Beijing, therefore, has to accept the tribunal’s decision because UNCLOS rules say it is the tribunal which decides whether the exclusions claimed by a state apply in a particular case, not the state itself. The tribunal’s award is final and without appeal. In this case, the tribunal considered China’s objections and overruled them.




 Activists protest in Vietnam yesterday after China rejected a UN tribunal’s ruling that dimssed the country’s territorial claim to much of the South China Sea. Pic/AFP

Yet, realpolitik would suggest that the tribunal decision is unlikely by itself to persuade China that its claims in the South China Sea are far more limited than it had assumed. But neither the tribunal, nor the Philippines has the power to enforce the ruling which China had declared at the very outset that it would not honour. There is one body which could, theoretically, legally enforce the verdict — the UN Security Council acting under Chapter VII of the UN Charter. But, as is well known, China is a veto-wielding member of the UNSC.
Officially, China has said that the maritime delimitation issue of the South China Sea should be settled through negotiation with countries directly concerned, “in accordance with international law, including UNCLOS.” Beijing is being careful not to trash UNCLOS itself, but only offering what it had on offer before — bilateral negotiations. It has also referred to its earlier offer of shelving the dispute and entering into joint development projects in the region.
But it has not said anything about the fact that the tribunal has questioned its very claim to territorial entitlements for the artificial islands that it has constructed. Neither has it commented on the tribunal’s refusal to accord the Nine Dash Line any status in international law.

The choices before China are quite stark. It can aggravate the situation by evicting the Philippines from the Scarborough Shoal and building an artificial structure on it. Or, station fighter aircraft on the artificial islands and declaring an ADIZ over the South China Sea.
A base in Scarborough Shoal would be just 185 nm from Manila and at a strategic location that would be unacceptable to Washington DC. Such a posture will bring it to a dangerous edge in its relationship with the US, which is treaty-bound to support the Philippines.
China cannot easily ignore the US. Besides their trade, which tops $560 billion, and China’s holdings of $1.3tn US treasury securities, there is a huge government-to-government and people-to-people interaction between the two countries. A conflict over the South China Sea would be disastrous for both, as well as the international community.
Historically, countries like the US, Russia and other great powers have resisted rulings of international tribunals, but they have all, subsequently, found ways of arriving at an accommodation. The US and EU should work to manage the fallout in a manner that does not compel China to lose face, and, more important, feel that its security is in any way imperilled. Hopefully, China is looking for an honourable exit.
If it is, then quiet, behind-the-scenes diplomacy can be undertaken to moderate and then eliminate the tensions. This could be by first allowing Filipino fishermen to access Scarborough Shoal, in exchange for the Philippines withdrawing its military contingent from the Second Thomas Shoal. Second, China could freeze and then roll back its artificial island construction activity. Actually, what the verdict has done is to reduce the area of maritime claims of all the claimant states by declaring that none of the features of the Spratlys Islands are true ‘islands’ entitled to a territorial sea and a 200nm EEZ, though some could be classed as rocks visible at high tide and have a 12nm territorial sea. This is, then, an opportune moment for them to de-escalate and go in for genuine negotiations. Further, China and ASEAN could move forward in working out the long stalled Code of Conduct.
As the most powerful state among the claimants, China needs to think hard about the consequences of conflict with the US, as well as buying permanent hostility of its South-east Asian neighbours by denying them their rightful maritime claims by the use of force. It needs to think hard, too, about its reputational damage as an emerging great power.
Mid-Day July 19 2016

Military has remained steadfast in its commitment to democracy

In our much-storied history, which our hyper-nationalists will possibly claim is the most ancient, there has been just one recorded instance where a commander-in-chief of the army overthrew the government of the day and seized power. This issue finds some resonance today in the context of the attempted coup in Turkey. Many ask, could this happen here, although the answer is pretty unambiguous that it cannot and will not. The recorded instance referred to happened around 187 BC, when Pushyamitra Shunga, the senapati of the Maurayan empire, killed the king during a guard of honour, and founded a dynasty that lasted till around 70 BC.
No king, sultan, emperor, viceroy or prime minister — Hindu, Buddhist, Muslim, Christian or Sikh — has since then has been overthrown by a military coup. Yes, empires have declined, rulers have been defeated, lost their kingdoms to rebels and relatives, but it is difficult to find another instance of the event that defines a coup — the takeover of a government by its military. In addition, of course, the modern Indian military identifies its DNA with that of Britain, another country which has never had the history of a coup.


Yet, even today, in the 21st century, dread of the man on a horseback runs like a thread through India’s governmental attitudes towards the armed forces. It is not open, but exists in the shadow world of intelligence agencies and civilian bureaucrats, who stoke the insecurities of politicians on the need to keep the military in check, and have succeeded in keeping uniformed personnel out of policy-making.
It was this perception that led Prime Minister Jawaharlal Nehru to eliminate the powerful post of commander-in-chief and make all three service chiefs equals in 1955. There were several instances in the 1950s and 1960s when politicians revealed their insecurities in relation to the armed forces. The first set of rumours came when General KS Thimayya retired as army chief in 1961. The train of events beginning with Thimayya’s resignation in August 1959, its withdrawal under Nehru’s pressure, the appointment of General PN Thapar as his successor, led to rumours of a coup with a specific date — January 30, 1961 — being designated as D-Day.


This is detailed in a book India’s Defence Problem by SS Khera, who was India’s defence secretary between 1963 and 1967. In chapter titled “Coups”, Khera noted that in January 1961, Nehru and home minister G B Pant had come to know of some military movements and had countermanded them. Apurba Kundu, who has examined the events, noted in his book Militarism in India that “the stories [of the alleged coups] may be dismissed as unfounded”. Khera did conclude that the chances of an outright coup were difficult, if not impossible, in India. Again, after the debacle of the 1962 border war with China, according to Neville Maxwell, Nehru expressed his concerns about the military in a letter to philosopher Bertrand Russell.
There is another incident widely known in the army. This is when the IB reported to the authorities about the movement of military personnel in the wake of Nehru’s death in May 1964. Actually, the then Army chief, General JN Chaudhuri, ordered the movement because he thought that it would be needed to help handle the crowds that would gather, just as he had experienced as a young officer in Mahatma Gandhi’s funeral. As a result, even today the IB maintains a discrete watch on the movements of military units in the vicinity of New Delhi.


All this could have been understood in the context of the 1950s and 1960s, when many newly independent countries — especially Burma and Pakistan — came under the heel of military dictators. But it sounds ridiculous in the 21st century, when the probity of the Indian armed forces has been thoroughly tested by time and circumstances.
Yet, more than half a century after the Thimayya “coup”, New Delhi was rocked by a newspaper story hinting at a coup attempt and coincidentally, again in January, in 2012. A front-paged report splashed across a New Delhi newspaper claimed that “central intelligence agencies” had detected “an unexpected (and non-notified) movement by a key military unit … in the direction of the capital,” subsequently, another similar movement was detected involving a parachute unit. This was in relation to a suit filed in the Supreme Court by the then army chief General V.K. Singh. The same newspaper later reported that “the MOD’s considered view now seems to be that it was a false alarm”. The ministry’s official spokesman too denied the report as being “baseless”. Actually, these sensitivities continue in the highest levels of the Indian political system today. Many observers believe that the refusal of the political system to appoint a chief of defence staff stems from their worries over “the man on the horseback”. Indeed, this writer was told by a former national security adviser that the principal opposition to the CDS in the UPA regime came from Sonia Gandhi, who raised worries about the possibility of a coup if a CDS took charge.
All this has had a deleterious effect on our national security planning. The dysfunctional system we have arises from the decision to keep the uniformed personnel out of planning and administering the military. This has prevented effective reforms to make our military a modern, war-winning force which requires the organisation and functioning of the military under the joint command of a chief of defence staff and the restructuring of the military under theatre commands.
But the answer to the question as to why a coup in India has not taken place, and will not do so, provided the country is not brought to the verge of collapse by its civilian leadership, lies in the quality of the military. Despite the fact that the politicians and the bureaucrats have gone out of their way to belittle and even insult them, the Indian military has remained steadfast in its commitment to democracy. This has as much to do with its history and DNA, as the outlook of the personnel who constitute it.
Hindustan Times July 18 2016

Delhi must act to address J&K's turmoil

The world is changing. Power is shifting eastwards towards China and India, and is being diffused downwards to non-state actors - including NGOs and terrorists.But what we are witnessing these days is something far more dramatic, and frightening.

The events in Turkey, the massacre in Nice, Brexit, and the verdict against China in the UNCLOS tribunal, are just the latest evidence that the world is not just changing, but being turned upside down.

This could well be the first sign of a different, more difficult world, with jobless growth, a broken global trading system, and Islamism going rogue across the world.

Even worse, it’s also about being blindsided, as people certainly were with Brexit and the rise of the Islamic State.

However, India - even with its usual chaos - is an oasis of calm where economic growth still means growth above 6 per cent. Where it is politics as usual, though with a dangerous edge of majoritarian grievance.

Alarm bells are certainly ringing across the country, but none so loudly as the ones in Jammu & Kashmir.

Glance

A superficial glance would suggest that the events rocking the state have become routine. After a bout of curfew and repression, things will settle down to the kind of uneasy peace that has prevailed through the past decade and a half.

But the eruption that took place after the killing of Burhan Wani needs to be analysed in careful detail. 

The significant pockets of separatist activity across the Valley are well known.

They have manifested their presence in the markedly lower voter turnout of constituencies in and around Srinagar, Sopur, Baramulla or Anantnag, and separatist leaders can bring the Valley to a halt through strike action.

Men carrying guns are still a regular sight in the Valley, despite a reduction recently.

Besides the neo-Hizbul Mujahideen, with its penchant for self-publicity, there are small groups of Pakistanis who are remote-controlled by the ISI.

Events in 2008 - the protest against the land transfer to the Amarnath yatra shrine board, and in 2010 - the Machhil fake killing of three innocents by army personnel - led to a popular upsurge where protesters adopted the dangerous tactic of pelting security forces with stones. 

Eventually more than 150 people were killed in the police shootings that were used to control the protesters.

Protest

In both instances, there appeared to be reasonable grounds for civil protest, which was subsequently manipulated by militants like Masrat Alam to become violent.

In the latest instance, the death of a militant has triggered the clashes.

Wani lived by the sword, and perhaps unsurprisingly died by it. There are all kinds of dark hints to suggest that he was extra-judicially executed.

But Kashmir is a place where rumours flourish, often because of the ham-fisted way the government attempts to control the narrative.

The danger that we see is not so much from Wani and his associates, but the mood that has persuaded thousands of protesters to brave the security forces' bullets.

In an era where Islamist radicalism has mutated so sharply in states like Iraq and Syria, you cannot be too careful.

That is why New Delhi needs to pay more attention to J&K than it has previously.

There are three elements of the Kashmir problem: one is the need for a discussion with Pakistan to resolve the outstanding dispute, and a second is the vital need for New Delhi to address the sense of grievance in the Valley.

In both areas, little or nothing is happening on the NDA-II watch.

Thirdly, the security forces have done all they can to bring armed militancy to heel in the state. 

Forces 

But despite the experience of 2008 and 2010, the governments in New Delhi and Srinagar have not been able to develop a professional police force equipped and trained to deal with crowds.

A CRPF constable trained to fight Maoists armed with AK-47s cannot switch personalities when dealing with a civil protester throwing stones at him in J&K.

Each of these elements is linked to the other.

Tough but non-lethal policing could enable an environment in which New Delhi can make a deal with Islamabad and Srinagar to return the state to normalcy.

The difficultly lies in synchronising the three.

We often find that the Pakistan part moves ahead, and Srinagar gets forgotten - or some event like Wani’s shooting triggers an uprising which undermines the first two elements.

A glance at those injured by pellets would show that most were born after 2000, with little or no memory of the dark days of the state in the 1990s. And like all teens, they seldom really think through consequences.

However, they do create them. And that’s why we need to move with some urgency in the state.

Mail Today July 17, 2016

South China Sea Verdict is a Blow to Beijing, It Must Now Find a Way to Back Down

The Permanent Court of Arbitration’s arbitral tribunal in its verdict on the South China Sea issue has decisively held against China’s expansive maritime claims in those waters. China has already denounced the verdict and declared that it has no intention of honouring it and the global community has no means of enforcing the judgment.
Indeed, the only legal mechanism that exists is a move under Chapter VII of the UN Charter. But, as we know, such enforcement moves can only be made by the UN Security Council (UNSC), of which China is a permanent, veto-holding member.
The biggest issue arising from the verdict is the question of the rule-based international system. Since 1971, the world community has made an effort to bring China into the international system. It has since then become a member of the UNSC, the United Nations Convention on the Law of the Sea (UNCLOS), the Non-Proliferation Treaty, the Wold Trade Organisation and other such regimes. By ratifying UNCLOS and accepting its provisions, China has made a solemn treaty commitment, which it is duty-bound to uphold.
By insisting that it had the right to judge whether or not it was party to a compulsory dispute-settlement mechanism, China undermined more than 50 UN conventions that allow a party to a convention to insist on arbitration if disputes cannot be resolved through negotiation. This has implications not just for international agreements, but everyday business dealings where some form of arbitration are part of agreements.
In ratifying UNCLOS, China has voluntarily and freely accepted the agreement as a whole, which means an acceptance of its compulsory dispute resolution mechanism. Last October, the arbitral tribunal actually looked at the issue as to whether or not it had jurisdiction and concluded that it did indeed have jurisdiction under Article 288(4) of UNCLOS.
China has to accept the tribunal’s decision because UNCLOS rules say that it is the tribunal that decides whether the exclusions claimed by a state apply in a particular case, not the state itself. The tribunal’s award is final and without appeal. This is not unique but normal international practice in cases of arbitration.

Map depicting the U-shaped 9-dash line in green, representing China’s claim to the waters within. Credit: Wikimedia

However, realpolitik, and indeed the immediate Chinese reaction would suggest that the decision of the tribunal is unlikely by itself to persuade China that its claims in the South China Sea lack the ‘historic’ basis it insists on. But educating China is just one aspect of the situation. The other is the fact that the South China Sea issue will be grist for China’s nationalistic mill. It remains to be seen whether Beijing whips up nationalistic rhetoric beyond the high it is already at.
China could further aggravate the situation by evicting the Philippines from the Scarborough Shoal and building an artificial structure on it. Or, it could station fighter aircraft on the artificial islands and declare an air defence identification zone (ADIZ) over the South China Sea.
Does China really think that it can trash UNCLOS and have normal relations with it South-east Asian neighbours? These countries now have a document – the arbitral tribunal verdict – that questions Beijing’s more alarming claims on the South China Sea. After the verdict, any effort to consolidate Chinese positions in the Scarborough reef will be treated as a hostile action by the Philippines. Likewise, an ADIZ or more aggressive patrolling would be seen as bullying by the smaller states of the region like Vietnam and Malaysia. China may be able to consolidate its military supremacy in the South China Sea, but it will be at the cost of huge reputational damage and the hostility of its maritime neighbours whose sense of grievance will be aggravated by the verdict.
The verdict will not stop China, neither will the freedom of navigation patrols and diplomatic démarches. What is needed is a diplomatic deal through which China can be aided in getting off its untenable perch. The problem is in figuring out what China’s goals are. If it is looking at the South China Sea as a means of pressuring the US into its concept of a ‘new type of great power relations’ in which both sides recognise their respective core interests, then things may not work out.
On the other hand, there could be regional solutions to reverse the course in certain key areas and shelve the disputes, especially in the light of the unambiguous verdict of the UNCLOS tribunal, which in a sense has questioned not just China but other states that are seeking an expansive interpretation of UNCLOS to advance their respective claims. For instance, China could once again permit Filipino fishermen to access Scarborough Shoal and in exchange, the Philippines could withdraw its military contingent from the Second Thomas Shoal. Both can agree to demilitarise the fishing areas. Likewise, the disputant states could quietly agree to pull back from the many features they have occupied and which the tribunal says in themselves cannot support “habitation by a stable community”, nor are worthy of getting their own maritime zones.
Thus, the challenge is to convert China from being a problem to be a part of the solution. This is something that can only be done through the diplomatic process and in the coming days, the international community and in particular big powers like the US, EU and Russia, must speak with a clear and firm voice, even while looking for face-saving means of aiding China to discreetly back off. Any other course will only be fraught with consequences that are difficult to predict.
Perhaps the biggest role here is for the United States.
Let us be clear that while regional states like the Philippines, Vietnam and Malaysia may be the disputants with China, there is another order of quarrel between the United States and China which is aggravating the South China Sea situation. This relates as much to the differences in their interpretations of UNCLOS, which the US has not ratified, but claims to uphold, as to geopolitics. As the world’s sole superpower, the US uses international law to maintain forward deployments of its military forces, something that the rising power China resents. Many of the clashes and near clashes that have taken place have been related to US military movements in China’s adjacent seas. The US therefore can be as much part of the solution as China can be.
The Wire July 12, 2016